Service Terms of Use

Welcome to Cemplicity, a Customer Experience Management service designed to transform your customers’ experiences and through this, your business.

These Terms are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.

By using the Service You acknowledge that you have read and understood these Terms (including Cemplicity’s Privacy Policy and Security Policy which are both provided on the Website) and have the authority to act on behalf of any person for whom You are using the Service. You are also deemed to have agreed to these Terms and also on behalf of any person or entity for whom You use the Service.

You acknowledge that the Cemplicity Service will evolve over time and it is likely these Terms will also change from time to time. It is your obligation to ensure You have read, understood and agree to the most recent terms available on the website.

1. DEFINITIONS

“Cemplicity”

means Cemplicity Limited, a company incorporated in New Zealand with New Zealand Business Number 9429030288591.

“Cemplicity Tools”

means the technology owned by Cemplicity that is used to capture customer feedback, match feedback to background data provided by Cemplicity clients, all analysis, reporting, exporting, case management software and applications. For the avoidance of doubt, this includes all the operations and functionality available at the time of first use of the Cemplicity Tools and also functionality included in subsequent general releases of the Cemplicity Tools software, including (but not limited to) all supporting documentation, training materials and general ‘know-how’.

“Confidential Information”

includes all information exchanged between the parties to these Terms, whether in writing, electronically or orally, including the Service.

“Data”

means any data inputted by You or with Your authority into the Cemplicity Tools or Website.

“End-User”

means any person or entity that registers to use the Service (whether via the Website, related apps, or otherwise) and includes (without limitation) a Partner, where that Partner uses the Service;

“Intellectual Property Right”

means all intellectual and industrial property rights all industrial and intellectual property rights whether conferred by statute, at common law or in equity, including: (a) All copyright and similar rights that may subsist in works or other subject matter; (b) Rights in relation to inventions (including all patents and patent applications); (c) Trade secrets and know-how;(d) Rights in relation to designs (whether or not registerable); (e) Rights in relation to registered and unregistered trademarks; (f) Rights in relation to databases;(g) Business names; and (h) Rights in relation to domain names;

“Licence Fee”

means the monthly fee payable by You in accordance with these Terms, being the fee  either specifically agreed to in writing between Cemplicity and You or otherwise as set out on the Website (which Cemplicity may change from time to time on notice to You).

“Partner”

means any person or entity offering the Cemplicity Tools as part of its independent service, in accordance with clause 3.2;

“Service”

means the ability to use the Cemplicity Tools and any other specifically agreed service between Cemplicity and an End-User in order to provide various surveys, reports and other forms of feedback;

“Set Up Fee”

means the set-up fee payable by You in accordance with these Terms, being the fee either specifically agreed to in writing between Cemplicity and You or otherwise as set out on the Website (which Cemplicity may change from time to time on notice to you)

“Terms”

means these Service Terms of Use.

“Website”

means the Internet site at the domain www.cemplicity.com or any other site operated by Cemplicity.

“You”

means the End-User and “Your” has a corresponding meaning.

“Your Customers”

has the meaning given to it at clause 5.1 (c) of these Terms.

 

2. ACCEPTANCE

2.1 Any use of, or access to the Service constitutes Your acceptance of these Terms and the Website’s Privacy Policy and Security Policy without qualification.  If You do not agree to be bound by these Terms or the Website’s Privacy Policy and Security Policy, please do not access and use the Service. These Terms shall apply to Your use of the Service and the Website unless otherwise agreed to in writing between You and Cemplicity.

 

3. USE OF SERVICE

3.1 Grant to use Service: Cemplicity grants You a licence to access and use the Service, in accordance with these Terms.

3.2 Partner’s use of the Cemplicity Tools: Conditional on the written consent of Cemplicity, a Partner may offer the Cemplicity Tools to third-parties as part of its independent services, subject to the following terms (without limitation):

(a) the Partner shall be solely responsible to Cemplicity for each third-party’s use of the Cemplicity Tools, which for the avoidance of doubt must be in accordance with these Terms as if the third-party was an End-User;

(b) without limitation to any other rights Cemplicity may have against the Partner, the Partner indemnifies Cemplicity against: all claims, costs (including legal fees), damage and loss arising from a third-party’s use of the Cemplicity Tools;

(c) the Partner shall be responsible for the payment to Cemplicity of all fees (such as licence fees) relevant to each third-party’s use of the Cemplicity Tools, as notified by Cemplicity.

 

4. FEES

4.1 Licence Fees: Cemplicity will liaise with You directly in order to set up payment arrangements for the Licence Fees.

4.2 Set-Up Fees: Cemplicity will render You an invoice in the amount of 50% of the Set-Up Fee upon Cemplicity commencing to set-up Your use of the Cemplicity Tools. Subsequently, Cemplicity will render you an invoice for the second 50% of the Set-Up Fee upon You having access to use the Cemplicity Tools.

4.3 Payment obligations: All sums due to Cemplicity under these Terms:

(a) Are exclusive of goods and service tax (if any);

(b) Must be paid in full without deduction, withholding, counterclaim or set-off of any kind;

(c) Must be paid no later than:

(i)  5 days of the invoice date for any Licence Fee;

(ii) The 20th day of the month of the invoice date for Set-Up Costs and additional fees (if any);

(iii) Or as otherwise agreed in writing by Cemplicity.

 

5. GENERAL OBLIGATIONS AND ACKNOWLEDGEMENTS:

5.1 Your obligations: You:

(a) Must only use the Service in accordance with these Terms. You may use the Service on behalf of others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom the Service is provided comply with and accept these Terms that apply to You;

(b) Are solely responsible for supervising, managing and controlling access to the Service;

(c) Must ensure that all information provided to Cemplicity to enable Cemplicity to provide the Service, including any information obtained from third-parties, such as Your own customers via surveys, reports or otherwise (which for the purposes of these Terms means “Your Customers”), complies with all applicable laws, regulations and codes, which includes (without limitation), complying with Your local privacy / access laws, regulations and codes in connection with obtaining such information;

(d) Must ensure that all information communicated via Your use of the Service,, including, but not limited to, information in relation to Your Customers, complies with all applicable laws, regulations and codes, which includes (without limitation), complying with Your local privacy / access laws, regulations and codes in connection with obtaining such information;

(e) You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Cemplicity of any unauthorised use of Your passwords or any other breach of security;

(f) Acknowledge that, as a condition of these Terms, when accessing and using the Service, You must:

(i) not attempt to undermine the security or integrity of the computing systems or networks, being used as part of the Service;

(ii) not use, or misuse, the Service in any way which may impair the functionality of the Service or Website;

(iii) not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected which You do not have the right to use); and

(iv) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service (which includes, without limitation, the Cemplicity Tools) or to operate the Website except as is strictly necessary to use either of them for normal operation.

5.2 Your acknowledgements: You acknowledge that:

(a) Use of the Service may be subject to limitations. By way of example, Cemplicity reserves the right to restrict access to the Service and / or Website for system updates. Any such limitations will be done with reasonable notice and with the aim of minimal disruption;

(b) You shall be responsible to Cemplicity for all information provided to Cemplicity, including (but not limited to) information in relation to Your Customers;

(c) Cemplicity will store and report data inputted by You (including data in relation to Your Customer) via the Service for up to a minimum of 3 years from the date such data was provided, unless otherwise agreed in writing by Cemplicity. After 3 years or any other longer agreed period Cemplicity may archive the data at is own discretion or delete or return such data with the written instruction from You;

 

(d) You indemnify Cemplicity against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Your Customers and/or Cemplicity, including (but not limited to) any costs relating to the recovery of any Licence Fees or Set-Up Fees that are due but have not been paid by You;

(e)  Cemplicity has no responsibility or obligations to any person other than You in relation to the Service and nothing in these Terms confers, or purports to confer, a benefit on any person other than You. If You use the Service or access the Website on behalf of or for the benefit of anyone other than yourself you agree that:

(i) You are responsible for ensuring that You have the right to do so in accordance with these Terms, and if not, that You have first secured such right from Cemplicity;

(ii) You are responsible for authorising any person who is given access to information or Data, and you agree that Cemplicity has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

(iii) You will indemnify Cemplicity against any claims or loss relating to Cemplicity’s making available information or Data to any person with Your authorisation.

(f) It is Your responsibility to check that storage of and access to Data submitted via the Service and the Website will comply with laws applicable to You in each relevant jurisdiction. This includes, but is not limited to any laws requiring You to host records in a specified region or to retain records for a minimum period of time).

(g) Cemplicity may use the aggregated Data obtained via the Service for the purpose of identifying candidates for Cemplicity’s ‘Customer Experience Improvement Awards’, industry analysis and reporting and for other similar purposes notwithstanding that at no time can Cemplicity publish information that identifies any individual or any specific company or entity without that individual’s or entity’s permission in writing;

(h) You shall not provide access to, sell, transfer, licence, sub-licence, loan, lease, or disclose the Cemplicity Tools to any third party, unless otherwise permitted by Cemplicity in accordance with these Terms;

(i)  A small logo and / or name of Cemplicity will appear on all surveys and reporting used or generated through the use of the Service.

 

6. CONFIDENTIALITY, PRIVACY AND SECURITY

6.1 Confidentiality obligations: Each party will maintain as secret and confidential, at all times, all Confidential Information and each party undertakes that:

(a) They will respect the other Party’s right to such Confidential Information;

(b)Use such Confidential Information exclusively for the purposes of these Terms;

(c)They will only disclose or provide Confidential Information to their employees, agents and other representatives to whom, and to the extent that, such disclosure is reasonably necessary for the purposes of these Terms;

(d)They will ensure that its employees, consultants, agents, advisers or contractors comply with the obligations of confidentiality imposed upon them by this clause 6 as if personally bound by such obligations; and

(e) Each party’s obligations under this clause will survive termination of these Terms.

6.2 Exceptions: Clause 6.1 does not apply to a party to the extent that:

(a) Disclosure is required by law or by the listing requirements of any relevant stock exchange on which that party is listed;

(b) The information is already in the public domain other than through the default of that party;

(c) The party makes disclosure to its professional advisers subject to appropriate confidentiality undertakings for the purpose of seeking advice on these Terms and the transactions contemplated by it;

(d) The party makes disclosure to its employees subject to appropriate confidentiality undertakings for the purpose of performing its obligations under these Terms.

6.3 Privacy: Cemplicity maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.Cemplicity.com/privacy/ and You will be taken to have accepted that policy when You accept these Terms.

6.4 Security: Cemplicity maintains a security policy in respect of how information provided to Cemplicity by You is secured. You should read Cemplicity’s Securitiy Policy at www.Cemplicity.com/security and you will be taken to have accepted that policy when You accept these Terms.

7. INTELLECTUAL PROPERTY

7.1 General: You acknowledge and agree that all Intellectual Property Rights in the Service (which includes, but is not limited to, the Cemplicity Tools and any modification, alteration or adaption of the Cemplicity Tools), the Website and any documentation relating to the Service remain the property of Cemplicity and You will not during or at the termination of these Terms in any way question or dispute such ownership by Cemplicity.

7.2 Ownership of Data Cemplicity acknowledges and agrees that Intellectual Property Rights in, the Data shall remain Your property. You grant Cemplicity a perpetual licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Service and for any other purpose related to provision of Service to You.

7.3 Backup of Data: It is recommended that You maintain copies of all Data inputted into the Service.

7.4 Third-party applications and your Data. If You enable third-party applications for use in conjunction with the Service, You acknowledge that Cemplicity may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Service. Cemplicity shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

 

 8. WARRANTIES

8.1 Authority: You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations

8.2 Information: You warrant and represent that all information provided to Cemplicity (including information in relation to Your Customers) in order to provide the Service has been obtained in accordance and complies with all applicable laws, regulations and codes, including (without limitation) all local privacy / access laws and regulations and does not breach the rights of any third-parties.

8.3 Service: Cemplicity warrants that it will provide the Service with reasonable skill and care.

8.4 Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service, the Website or these Terms.

 

9. LIMITATION OF LIABILITY

9.1 If You suffer loss or damage as a result of Cemplicity’s negligence or failure to comply with these Terms, any claim by You against Cemplicity in contract, tort (including negligence) or otherwise, for any loss arising from Cemplicity’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Licence Fees paid by You under these Terms in the previous 12 months.

9.2 In no event will Cemplicity be liable (whether in contract, tort (including negligence), or otherwise) to You for:

(a) Loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or

(b) Loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,

arising directly or indirectly out of these Terms, even if Cemplicity had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by Cemplicity.

 

10. TERMINATION

10.1 No-fault termination: This Terms will continue for the period covered by the Licence Fee paid or payable under clause 4.1, unless either party terminates these Terms by giving at least 30 days’ notice to the other party. If You terminate these Terms You shall be liable to pay any outstanding Set-Up Fee and any additional fees (if any) and in relation to any outstanding Licence Fee, you must pay Cemplicity on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

10.2 Breach: If You:

(a) breach any term of these Terms (including, without limitation, by non-payment of any Set-Up Fee, Licence Fee and additional fees (if any)) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; or

(b) breach any term of these Terms and the breach is not capable of being remedied; or

(c) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

Cemplicity may take any or all of the following actions, at its sole discretion:

(d)Terminate these Terms and Your use of the Service and the Website;

(e)Suspend for any definite or indefinite period of time, Your use of the Service and the Website;

(f) Suspend or terminate access to all or any Data.

(g) Take either of the actions in sub-clauses (d), (e) and (f) of this clause 10.2 in respect of any or all other persons whom You have authorised to have access to Your information or Data.

10.3 Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of these Terms You will:

(a)remain liable for any accrued charges and amounts which become due for payment before or after termination; and

(b)immediately cease to use the Service and the Website.

10.4 Expiry or termination: Clauses 4.1, 4.2, 6, 7, 8, 9, 10 and 11 survive the expiry or termination of these Terms.

 

11. GENERAL

11.1 Entire agreement: Subject to clause 2.1, these Terms, together with the Website’s Privacy Policy and Security Policy and the terms of any other notices or instructions given to You under these Terms , supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Cemplicity relating to the Service and the other matters dealt with in these Terms.

11.2 Amendment to these Service Terms of Use: Cemplicity may change these Terms at any time by changing or removing existing terms or adding new ones.  Changes may take the form of a completely new set of Service Terms of Use. Cemplicity will notify You about any changes by posting an updated Service Terms of Use on the Website.  Any change Cemplicity makes, applies from the date Cemplicity posts it on the Website.

11.3 Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

11.4  Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

11.5 No Assignment: You may not assign or transfer any rights to any other person without Cemplicity’s prior written consent.

11.6 Governing law and jurisdiction: These Terms and Your use of the Website and Service will be governed by and construed in accordance with the laws of New Zealand and You submit to the non-exclusive jurisdiction of the New Zealand Courts.

11.7 Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of these Terms will be binding on the parties.

11.8  Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Cemplicity must be sent to support@cemplicity.com or to any other email address notified by email to You by Cemplicity. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.

11.9 Rights of Third Parties: A person who is not a party to these Terms (which for the avoidance of doubt, includes a third-party user pursuant to clause 3.2 and Your Customers) has no right to benefit under or to enforce any term of these Terms.